{"id":13920,"date":"2022-10-26T09:00:19","date_gmt":"2022-10-25T22:00:19","guid":{"rendered":"https:\/\/www.dbalawyers.com.au\/?p=13920"},"modified":"2022-11-18T21:39:33","modified_gmt":"2022-11-18T10:39:33","slug":"your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty","status":"publish","type":"post","link":"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/","title":{"rendered":"Your discretionary trust may unwittingly be subject to extra duty"},"content":{"rendered":"<h3><img loading=\"lazy\" decoding=\"async\" class=\"size-medium wp-image-13881 alignright\" src=\"http:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2022\/10\/Screenshot_2a.jpg\" alt=\"\" width=\"300\" height=\"200\" \/><\/h3>\n<h3><strong>Background<\/strong><\/h3>\n<p>The foreign purchaser additional duty (<strong>FPAD<\/strong>) provisions of the <em>Duties Act 2000<\/em> (Vic) (<strong>Act<\/strong>) may add an extra 8% land transfer duty on residential property purchases in Victoria if there is a foreign beneficiary of your discretionary trust.<\/p>\n<p>This article examines how the Victorian FPAD regime applies with respect to discretionary trusts, as many trusts may unexpectedly be regarded as foreign trusts and be liable to pay FPAD when acquiring residential property. While this article focuses on Victorian legislation, most other Australian jurisdictions have similar taxes applying to \u2018foreign trusts\u2019. For further reading on other jurisdictions, <a href=\"https:\/\/www.dbalawyers.com.au\/announcements\/discretionary-trusts-the-foreign-purchaser-duty-surcharge-across-australia\/\">click here<\/a>.<\/p>\n<h3><strong>When are discretionary trusts treated as foreign trusts?<\/strong><\/h3>\n<p>The starting position is that a foreign purchaser will be liable to pay FPAD. A \u2018foreign purchaser\u2019 is defined in the Act to mean a transferee that is:<\/p>\n<ul>\n<li>a foreign natural person; or<\/li>\n<li>a foreign corporation; or<\/li>\n<li>the trustee of a foreign trust.<\/li>\n<\/ul>\n<p>A \u2018foreign trust\u2019 is defined to mean a trust in which one of the following persons has a substantial interest in the trust estate:<\/p>\n<ul>\n<li>a foreign corporation;<\/li>\n<li>a foreign natural person; or<\/li>\n<li>trustee of another foreign trust.<\/li>\n<\/ul>\n<p>A \u2018foreign natural person\u2019 is a natural person who is <em>not<\/em> any of the following:<\/p>\n<ul>\n<li>an Australian citizen;<\/li>\n<li>permanent visa holder; or<\/li>\n<li>a New Zealand citizen holding a special category visa.<\/li>\n<\/ul>\n<p>We will now explore what is meant by \u2018substantial interest in the trust estate\u2019 and how this impacts the meaning of a foreign trust.<\/p>\n<h3><strong>Substantial interest in the trust<\/strong><\/h3>\n<p>Under most discretionary trust deeds, the trustee has a discretion to distribute income and capital between a range of beneficiaries. Discretionary trust deeds will typically distinguish between different types of beneficiaries such as:<\/p>\n<ul>\n<li>beneficiaries that are specifically named in the deed (these beneficiaries are often called <em>primary beneficiaries <\/em>and may have additional rights or entitlements under the deed); and<\/li>\n<li>general beneficiaries (or mere objects).<\/li>\n<\/ul>\n<p>General beneficiaries are often defined as a class of persons, companies or trustees of trusts by reference to the primary beneficiaries. Specification of beneficiaries by class rather than by their specific identity provides a great deal of flexibility as different persons may fall within the class definition over time if they have the relevant attribute (eg, a relationship to a primary beneficiary) and will therefore be eligible to benefit under the trust. For example, rather than specifically naming their current children as beneficiaries under a trust, parents may simply create a class of beneficiaries being \u2018their children\u2019 which will typically encompass both their living and any future children.<\/p>\n<p>Classes of general beneficiaries typically include the primary beneficiary\u2019s direct family (being their spouse and children, grand-children and lineal descendants), various classes of extended relatives and the direct family of the people in these classes as well as eligible corporations and eligible trusts in respect of the other beneficiaries of the trust. While it is generally seen as beneficial to include as many potential beneficiaries as possible this can lead to unintended duty consequences under the FPAD regime.<\/p>\n<p>Broadly, any person or member of a class of persons who a trustee has the power or discretion to distribute the trust\u2019s income or capital to is taken to have a substantial interest in the trust estate. This means that where a trustee has the discretion to distribute all of the trust\u2019s income or capital to any beneficiary and a beneficiary of the trust is a \u2018foreign person\u2019, the trust will be deemed to be a foreign trust for FPAD purposes.<\/p>\n<h3><strong>Example \u2014 where a discretionary trust is regarded as a foreign trust<\/strong><\/h3>\n<p>Mr Robert Smith and Mrs Mary Smith are the trustees and primary beneficiaries of the Smith Family Trust; a discretionary family trust. The trust deed grants the trustees a wide discretion to distribute the trust\u2019s income or capital to any of the beneficiaries.<\/p>\n<p>The beneficiaries under the trust deed include:<\/p>\n<ul>\n<li>the Primary Beneficiaries (ie<em>, Mr and Mrs Smith<\/em>);<\/li>\n<li>the children, brothers, sisters, parents, uncles, aunts, nieces and nephews of the Primary Beneficiaries; and<\/li>\n<li>the spouse and children of all of the persons described in subclause (b) above.<\/li>\n<\/ul>\n<p>Mr and Mrs Smith have a nephew that recently moved to Spain and entered into a defacto relationship with a Spanish woman named Francesca (who is not an Australian citizen or permanent visa holder and is therefore a foreign person as defined in the Act).<\/p>\n<p>In accordance with the trust deed provisions, Francesca is the spouse of the nephew and is therefore a beneficiary whom the trustees can distribute to. Although Mr and Mrs Smith as trustees have never distributed any income or capital of the trust to their nephew or Francesca, the Smith Family Trust is deemed to be foreign trust for the purposes of the Act. Thus, an extra 8% land transfer duty would be payable on any Victorian residential property purchased by the Smith Family Trust.<\/p>\n<p>Many Australian trusts will inadvertently meet this definition of foreign trust, despite never having distributed to a foreign person and never intending to do so. If the trustee of a foreign trust purchases residential property in Victoria, it will be liable to pay FPAD. While the Victorian SRO previously sought to apply a \u2018practical approach\u2019 to such situations, this is no longer the case<\/p>\n<h3><strong>Additional land tax on absentee owners<\/strong><\/h3>\n<p>Trustees considering purchasing property in Victoria should also be aware of the land tax surcharge provisions found in the <em>Land Tax Act 2005<\/em> (Vic) (<strong>LTA<\/strong>). As a general overview, the trustee of an \u2018absentee trust\u2019 will be liable to pay the \u2018absentee owner surcharge\u2019 of 2% on the total taxable value of Victorian land owned which will be included in their land tax assessment. For a discretionary trust to be an absentee trust, at least one <em>specified beneficiary<\/em> must be an \u2018absentee person\u2019. An absentee person must typically be specifically named as a beneficiary of a discretionary trust for it to be deemed an absentee trust.<\/p>\n<h3><strong>Discretionary trusts moving forward<\/strong><\/h3>\n<p>Anyone establishing a discretionary trust should carefully consider their circumstances and whether the trust could, initially or at some point in the future, be a foreign trust. If the trust is not intended to be a foreign trust, consideration should be given as to whether the trust deed should be drafted to restrict the trustee from distributing to a foreign person. A deed drafted in this way may prevent a trustee from inadvertently incurring FPAD.<\/p>\n<p>Unless the foreign person exclusion provisions are included in a discretionary trust deed on establishment additional duty and land tax generally applies as many families have one or more foreign beneficiaries. We generally recommend that discretionary trusts be ordered with the foreign exclusion provisions, particularly as it is significantly more expensive and risky to make such amendments later on.<\/p>\n<h3><strong>Webinar &#8211; 18 November 2022<\/strong><\/h3>\n<p>On 18 November 2022 we will be holding a webinar exploring these issues of discretionary trusts dealing with FPAD &amp; foreign land tax surcharge which will include topics such as:<\/p>\n<ul>\n<li>What is foreign purchaser duty?<\/li>\n<li>Should a trust include the foreign person exclusions on establishment?<\/li>\n<li>What is involved with inserting these exclusions later on?<\/li>\n<li>Will a \u2018resettlement\u2019 arise when exclusions are inserted later on?<\/li>\n<li>Should all jurisdictions be excluded or should different trusts be used?<\/li>\n<li>What are the key tests and traps for FPAD and land tax surcharges?<\/li>\n<li>When will an SMSF be a \u2018foreign trust\u2019 and subject to FPAD and the land tax surcharge?<\/li>\n<\/ul>\n<p>Watch live or a recorded version. To register, click <a href=\"https:\/\/attendee.gotowebinar.com\/register\/4789109138354670605\">here<\/a>.<\/p>\n<h3><strong>Related articles<\/strong><\/h3>\n<ul>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/announcements\/discretionary-trusts-the-foreign-purchaser-duty-surcharge-across-australia\/\">Discretionary trusts &amp; the foreign purchaser duty surcharge across Australia<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/announcements\/victoria-nsw-and-tasmania-foreign-purchaser-duty-update-discretionary-trusts\/\">Victoria, NSW and Tasmania foreign purchaser duty update \u2014 Discretionary Trusts<\/a><\/li>\n<\/ul>\n<p style=\"text-align: center;\">*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n<p>This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional. The above does not constitute financial product advice. Financial product advice can only be obtained from a licenced financial adviser under the <em>Corporations Act 2000 <\/em>(Cth).<\/p>\n<p>Note: DBA Lawyers presents monthly online SMSF training. For more details or to register, visit <a href=\"http:\/\/www.dbanetwork.com.au\">www.dbanetwork.com.au<\/a> or call 03 9092 9400.<\/p>\n<p>For more information regarding how DBA Lawyers can assist in your SMSF practice, visit <a href=\"http:\/\/www.dbalawyers.com.au\">www.dbalawyers.com.au<\/a>.<\/p>\n<p><em>By Shaun Backhaus (<\/em><a href=\"mailto:sbackhaus@dbalawyers.com.au\"><em>sbackhaus@dbalawyers.com.au<\/em><\/a><em>), Senior Associate and Daniel Butler<\/em> <em>(<\/em><a href=\"mailto:dbutler@dbalawyers.com.au\"><em>dbutler@dbalawyers.com.au<\/em><\/a><em>)<\/em><em>, Director, DBA Lawyers<\/em><\/p>\n<p><strong>DBA LAWYERS<\/strong><\/p>\n<p>26 October 2022<\/p>\n<div class=\"printfriendly pf-button  pf-alignleft\"><a href=\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/?pfstyle=wp\" rel=\"nofollow\"  title=\"Printer Friendly, PDF & Email\"><img decoding=\"async\" class=\"pf-button-img\" src=\"https:\/\/cdn.printfriendly.com\/buttons\/printfriendly-pdf-button.png\" alt=\"Print Friendly, PDF & Email\" style=\"width: 112px;height: 24px;\"  \/><\/a><\/div>\n","protected":false},"excerpt":{"rendered":"<p>Background The foreign purchaser additional duty (FPAD) provisions of the Duties Act 2000 (Vic) (Act) may add an extra 8% land transfer duty on residential property purchases in Victoria if there is a foreign beneficiary of your discretionary trust. This article examines how the Victorian FPAD regime applies with respect to discretionary trusts, as many [<a class=\"read-more\" href=\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/\">read more<\/a>]<\/p>\n","protected":false},"author":11,"featured_media":13922,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,29,37,40,38],"tags":[],"ppma_author":[136],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v22.5 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Your discretionary trust may unwittingly be subject to extra duty | Leading SMSF Law Firm<\/title>\n<meta name=\"description\" content=\"The foreign purchaser additional duty (FPAD) provisions of the Duties Act 2000 (Vic) (Act) may add an extra 8% land transfer duty on residential property purchases in Victoria if there is a foreign beneficiary of your discretionary trust.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Bryce Figot\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/\",\"url\":\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/\",\"name\":\"Your discretionary trust may unwittingly be subject to extra duty | Leading SMSF Law Firm\",\"isPartOf\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/#primaryimage\"},\"image\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/#primaryimage\"},\"thumbnailUrl\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2022\/10\/Screenshot_2a.jpg\",\"datePublished\":\"2022-10-25T22:00:19+00:00\",\"dateModified\":\"2022-11-18T10:39:33+00:00\",\"author\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/21df751f40981297a0f6417071b6a63e\"},\"description\":\"The foreign purchaser additional duty (FPAD) provisions of the Duties Act 2000 (Vic) (Act) may add an extra 8% land transfer duty on residential property purchases in Victoria if there is a foreign beneficiary of your discretionary trust.\",\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/\"]}]},{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/announcements\/your-discretionary-trust-may-unwittingly-be-subject-to-extra-duty\/#primaryimage\",\"url\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2022\/10\/Screenshot_2a.jpg\",\"contentUrl\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2022\/10\/Screenshot_2a.jpg\",\"width\":632,\"height\":631},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#website\",\"url\":\"https:\/\/www.dbalawyers.com.au\/\",\"name\":\"DBA Lawyers\",\"description\":\"Leading SMSF Law Firm\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.dbalawyers.com.au\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/21df751f40981297a0f6417071b6a63e\",\"name\":\"Bryce Figot\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/image\/a9a812be4056bdc150ca270634702d72\",\"url\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2024\/03\/bryce.jpg\",\"contentUrl\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2024\/03\/bryce.jpg\",\"caption\":\"Bryce Figot\"},\"description\":\"Bryce is also recognised as one of Australia's leading SMSF lawyers. He has worked predominantly in the fields of tax and superannuation over the past 17 years and holds a Master of Laws from the University of Melbourne. Bryce is a regular seminar presenter on tax and SMSF topics and has published extensively in these areas. Bryce regularly presents for the major professional bodies including the SMSF Association, CPA Australia The Tax Institute, Chartered Accountants Australia and New Zealand and DBA Network. Bryce is regularly quoted and published in the Australian Financial Review, the Herald Sun, CCH and LexisNexis publications, and elsewhere in the financial press. Bryce wrote the book Complete Guide to SMSFs: Planning for Loss of Capacity and Death, published by CCH Wolters Kluwer. Bryce is on the editorial panel of LexisNexis' Australian Superannuation Law Bulletin. He is a Senior Fellow at the University of Melbourne's Law School, where he is the subject coordinator of Taxation of Superannuation. 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He has worked predominantly in the fields of tax and superannuation over the past 17 years and holds a Master of Laws from the University of Melbourne. Bryce is a regular seminar presenter on tax and SMSF topics and has published extensively in these areas. Bryce regularly presents for the major professional bodies including the SMSF Association, CPA Australia The Tax Institute, Chartered Accountants Australia and New Zealand and DBA Network. Bryce is regularly quoted and published in the Australian Financial Review, the Herald Sun, CCH and LexisNexis publications, and elsewhere in the financial press. Bryce wrote the book Complete Guide to SMSFs: Planning for Loss of Capacity and Death, published by CCH Wolters Kluwer. Bryce is on the editorial panel of LexisNexis' Australian Superannuation Law Bulletin. He is a Senior Fellow at the University of Melbourne's Law School, where he is the subject coordinator of Taxation of Superannuation. Bryce is a Specialist SMSF Advisor\u2122 as well as being a Chartered Tax Adviser.","url":"https:\/\/www.dbalawyers.com.au\/author\/bryce\/"}]}},"authors":[{"term_id":136,"user_id":11,"is_guest":0,"slug":"bryce","display_name":"Bryce Figot","avatar_url":"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2024\/03\/bryce.jpg","first_name":"Bryce","last_name":"Figot","user_url":"","description":"Bryce is also recognised as one of Australia's leading SMSF lawyers. He has worked predominantly in the fields of tax and superannuation over the past 17 years and holds a Master of Laws from the University of Melbourne.\r\nBryce is a regular seminar presenter on tax and SMSF topics and has published extensively in these areas. Bryce regularly presents for the major professional bodies including the SMSF Association, CPA Australia The Tax Institute, Chartered Accountants Australia and New Zealand and DBA Network.\r\nBryce is regularly quoted and published in the Australian Financial Review, the Herald Sun, CCH and LexisNexis publications, and elsewhere in the financial press. Bryce wrote the book Complete Guide to SMSFs: Planning for Loss of Capacity and Death, published by CCH Wolters Kluwer. Bryce is on the editorial panel of LexisNexis' Australian Superannuation Law Bulletin. He is a Senior Fellow at the University of Melbourne's Law School, where he is the subject coordinator of Taxation of Superannuation.\r\nBryce is a Specialist SMSF Advisor\u2122 as well as being a Chartered Tax Adviser."}],"_links":{"self":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/13920"}],"collection":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/comments?post=13920"}],"version-history":[{"count":2,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/13920\/revisions"}],"predecessor-version":[{"id":14124,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/13920\/revisions\/14124"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/media\/13922"}],"wp:attachment":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/media?parent=13920"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/categories?post=13920"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/tags?post=13920"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/ppma_author?post=13920"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}